TOI: Delhi High Court legalizes homosexuality

2 July 2009
The Times of India
Source
Delhi High Court legalizes homosexuality
 
NEW DELHI: In a historic judgement, the Delhi High Court on Thursday decriminalized homosexuality by reading down section 377 of the Indian Penal 
Code.

The Section 377 of the IPC as far as it criminalizes gay sex among consenting adults is violation of fundamental rights, said the high court. However, Section 377 of the Indian Penal Code which criminalizes homosexuality, will continue for non-consensual and non-vaginal sex.

Any kind of discrimination is anti-thesis of right to equality, said the court, while allowing plea of gay rights activists for decriminalization of homosexuality.

A bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, section 377 of the IPC would violate Article 21 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law.

The court said that this judgement will hold till Parliament chooses to amend the law.

“In our view Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconception of who the LGBTs (lesbian gay bisexual transgender) are.

“It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster dignity of every individual,” the bench said in its 105-page judgement.

Section 377, a law from the British Raj era, says homosexuality and “unnatural sex” is a criminal act.

While the home ministry wanted the petition to be dismissed, the health ministry supported its contention that section 377 criminalized homosexuality per se, it was obstructing the AIDS/HIV prevention efforts among high-risk groups. Whatever the outcome, this is the second time the Delhi high court will be pronouncing on Naz Foundation’s petition against section 377. In 2004, it dismissed the petition at the preliminary stage stating that “an academic challenge to the constitutionality of a legislative provision could not be entertained.” It further said that when no personal injury was caused to the petitioner by this provision, the petition could not be examined.

The foundation then approached the Supreme Court, which disapproved the manner in which the high court had disposed of the matter. SC observed that when there was a debate on this issue the world over, “where is the question of the petition being academic? We are not able to accept the approach of the high court that it is an academic exercise and there is no personal injury.” Accordingly, in 2006, SC directed HC to reconsider the matter in detail. The judgment is coming close on the heels of statements from ministers on the possibility of a legislative intervention because of growing demands from the community of lesbians, gays, bisexuals and transgenders (LGBT). If the judgment serves the purpose of decriminalizing homosexuality, the government will be spared the burden of amending a provision laden with religious and cultural sensitivities.

Interestingly, in the new team of law officers appointed by the government, at least two of them — attorney general Goolam Vahanvati and additional solicitor general Indira Jaising —- have publicly supported the demand for decriminalizing homosexuality.

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